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Professor Lubin's contribution to volume 2 is titled, "Politics, Power Dynamics, and the Limits of Existing Self-Regulation and Oversight in ICC Preliminary Examinations," pp. 77-150.

Should the normative framework that governs the International Criminal Court’s (‘ICC’) oversight concerning preliminary examinations undergo a reform? The following chapter answers this question in the affirmative, making the claim that both self-regulation by the Office of the Prosecutor (‘OTP’) and quality control by the Pre-Trial Chamber (‘PTC’) currently suffer from significant deficiencies, thus failing to reach the optimum point on the scale between absolute prosecutorial discretion and absolute control. The chapter demonstrates some of these inadequacies using the example of the preliminary examination concerning the situation in Palestine. The chapter first maps out the legal structures and mechanisms that regulate the preliminary examination stage. The chapter then explores a number of key areas in which the OTP has considerable independence, and concerning which sufficient quality control is critical to ensuring the legitimacy of the preliminary examination process, and of the Court itself. This review includes an analysis of the Court’s potential for politicization, the problems faced by the OTP when attempting to articulate generalized prioritization policies and exit strategies, the regulation of evidentiary standards at the preliminary examination stage, and the role of transparency in the preliminary examination process. The chapter concludes with four suggestions for potential reform of the existing control mechanisms over prosecutorial discretion in preliminary examinations: (1) re-phasing of the preliminary examination phase and the introduction of a Ganttbased review process and a sliding scale of transparency requirements; (2) redefinition of the relationship between the OTP and PTC at the preliminary examination stage; (3) redrafting the existing OTP policy papers on Preliminary Examinations and Interests of Justice, as well as adopting a new policy paper on Evidence, Evidentiary Standards, and Source Analysis; and (4) introducing a ‘Committee of Prosecutors’ as a new external control mechanism

ISBN

9788283481112 (print) 9788283481129 (ebook)

Publication Date

2018

Publisher

Torkel Opsahl Academic EPublisher

City

Brussels

Keywords

International Criminal Courts, ICC, Normative Framework, Pre-Trial Chamber, PTC, Office of the Prosecutor, OPC

Disciplines

Courts | Human Rights Law | International Humanitarian Law | International Law | Law

Comments

Bergsmo, Morten and Carsten Stahn, eds. Quality Control in Preliminary Examination, Vol. 2. Torkel Opsahl Academic EPublisher, 2018.

Volume 2 contains 18 chapters in three of the five parts of the two volumes: Part 3, “The Normative Framework of Preliminary Examinations”; Part 4, “Transparency, Co-operation and Participation in Preliminary Examination”; and Part 5, “Thematicity in Preliminary Examination”. The two volumes make up one coherent whole and have been bifurcated for convenience given the high overall number of pages.

TOAEP Publication Series no. 33.

Volume 1 available HERE.

Politics, Power Dynamics, and the Limits of Existing Self-Regulation and Oversight in ICC Preliminary Examinations

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